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ARUN MONGA
Balwant Singh – Appellant
Versus
Ankit – Respondent
JUDGMENT
Arun Monga, J. (Oral)
Revision petition herein inter alia is to set aside impugned order dated 13.04.2023 (Annexure P-6) passed by learned Additional Civil Judge (Senior Division), Hansi whereby application filed by petitioner-plaintiff for appointment of Local Commissioner, was dismissed.
2. Learned counsel for petitioner-plaintiff would contend that plaintiff filed a suit for separate possession by metes and bounds in respect of 1/4th share each of petitioner/ plaintiffs in the Gair Mumkin land measuring 1 Kanal 14 Marlas bearing Khewat No.5081//4581, Khatoni No.6023, comprising Khasra No.305//26 (1-14) situated at village Sainipura, Tehsil Hansi, District Hisar, as per Jamabandi for the year 2017-18 read with mutation No.29970; with consequential relief of permanent injunction restraining respondent/defendants from alienating, transferring, mortgaging, gifting or otherwise creating charge of third person on the specific portion of the suit land noted above or exceeding their share in the suit land and also from raising construction over any specific portion of the suit land and also from changing the nature of the suit land without partition detrimental to the rights and
The main legal point established is that the appointment of a Local Commissioner under Order XXVI Rule 9 CPC can be allowed in a civil suit to assist in elucidating the matter in dispute without caus....
A plaintiff cannot seek a Local Commissioner to gather evidence if there is no substantial basis for such request, particularly when the burden of proof lies with them regarding ownership claims.
The appointment of an Advocate-Commissioner is unwarranted in the absence of genuine ambiguity regarding property identification; the burden to prove ownership lies with the plaintiffs.
The court has discretion under Order 26 Rule 9 CPC to appoint a local commissioner for proper elucidation of the matter in dispute, and the earlier dismissal of such a request does not preclude the c....
The court established that the refusal to appoint a Local Commissioner does not affect the rights of the parties and is not subject to revision.
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